Is there a legal difference between being married and living together?

1. Learn which rights are different

Married couples and common-law couples usually have different rights in the following areas:

Divorce

If you were , you must get a before you can marry someone else.  If you don’t get divorced, you can still live with someone else in a .  But you can’t remarry.

There might be other reasons for a married partner to get a divorce. For example, you might want to get a divorce so that your married partner won’t get certain property after you die. You can read more about why you might want to get a divorce in Do I have to get a divorce?

If you were living common-law, you don’t need a divorce to marry or to live with someone else.

Property

Property includes  and .

When you get married, the law assumes you are in an equal partnership. If you separate or divorce, you and your partner usually share the value of all your property.  

Note that this rule might not apply if you and your partner agreed to something else in a or . Some people call a marriage contract a “prenup” or a “prenuptial agreement”.

When a common-law relationship ends, the couple doesn’t usually share the value of their property. Usually, each common-law partner keeps:

  • the property they had when they started the relationship
  •  the property they got while they were living with their partner

Common-law partners only have to share the property they own together. They can try to claim a share of their partner’s property in some situations, but it can be very hard to prove they should get a share.

Common-law partners may agree to share property in a cohabitation agreement.

Home

If you and your partner separate, there are special rules about who can stay in the home that only apply if you were married.

If you were living common-law, then your right to stay in the home after you separate usually depends on who owns the home or whose name is on the lease or rental agreement.

Inheritance

There are rules about what a married partner gets if their partner dies without a will.

Common-law partners do not automatically inherit anything if their partner dies without a will.

Claiming your rights

To prove your right to things like inheritance or to stay in your home, you might need to prove your relationship.

If you are married, it is easier to prove that you were actually married and the date that you got married. Your marriage certificate should have these details. If you lost or can’t find your marriage certificate, you can usually order it from the government.

If you are in a common-law relationship, it can be harder to prove the time during which you and your partner lived together.

It can also be harder to prove the type of relationship that you had.  You have to show that your relationship was marriage-like and not, for example, a landlord-tenant relationship. A court uses these types of questions to decide if you’re in a common-law relationship:

  • Did you live together?
  • Did you have sex?
  • Did you do household chores for each other like cooking, cleaning, and laundry?
  • Did you behave like a couple around other people?
  • Did your friends, family, and community see you as a couple?
  • Did one partner support the other financially?
  • Did you combine your finances,like have a joint bank account or credit card?
  • Did you have any children together or act as parents to each other’s children?
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